Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise. The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional, an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals. Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed. The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away. It simply means that the DOJ will not stand in any of the DOMA cases. A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress. Congress then has the right to appoint its own attorney to intervene and defend the law. With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage. Here’s a brief timeline of how the BBA has participated in this debate in the past.

In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.

In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.

In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.

In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.